Case dismissed

In the end, the members of the Nightcaps weren't just seeking money when they picked their legal fight with ZZ Top. They wanted some respect, some credit--someone to acknowledge that 20 years ago, ZZ Top stole their one small claim to Texas music fame.

But on January 12, the Texas Fifth Circuit Court of Appeals dismissed the Nightcaps' claim that in 1975, ZZ Top copyrighted the song "Thunderbird" and named the band members--Billy Gibbons, Frank Beard, and Joe "Dusty" Hill--as its authors.

ZZ Top recorded the song for their 1975 live album Fandango. The Nightcaps, however, had written and recorded "Thunderbird" 15 years earlier as a single and included it on their album Wine, Wine, Wine, and it stands as a definitive moment in Texas white-boy blues, having influenced a generation of musicians that included Stevie Ray and Jimmie Vaughan, Doyle Bramhall, and even Steve Miller.

In a ruling riddled with bad puns and condescending musical references--"The Nightcaps argue that the relevant statute of limitations does not silence the melodies of their claims," "the Nightcaps sing a chorus of state and federal laws," "the waltz was over by the time the Nightcaps filed suit"--the court upheld an earlier ruling from the U.S. District Court that the three-year statute of limitations period had expired by the time the Nightcaps filed their lawsuit in 1992.

"Imitation may be the sincerest form of flattery," wrote circuit court judge Irving Goldberg, "but it may also lead to jealousy when the imitator succeeds where the imitated does not...Apparently, the song ["Thunderbird"] and the album [Wine, Wine, Wine] did not shower the Nightcaps with fame and fortune, and the band broke up in the 1960s. ZZ Top, however, is currently a very successful band."

Goldberg justified the court's ruling by pointing out that in 1960, when the Nightcaps were just teenagers playing local nightclubs and frat parties, they failed to file their own copyright on the song and, in effect, gave up their claims to the material. Goldberg--as well as ZZ Top--concede that ZZ Top's version of "Thunderbird" is "musically and lyrically identical to the version originally written and performed by the Nightcaps," and Goldberg likened ZZ Top's rendition of "Thunderbird" to a cover song with the Nightcaps as authors and ZZ Top as performers.

But the difference here is that ZZ Top claims authorship of "Thunderbird," both on Fandango and in papers filed with the U.S. Copyright Office. If the Top were merely covering the song, then the Nightcaps would receive songwriting royalties from each sale of Fandango and the 1987 Six Pack boxed set, on which "Thunderbird" also appears. But they have not--and will not--see a dime.

Still, no legal ruling can deny what happened: ZZ Top claims creation and ownership of a song they did not write. The Nightcaps' influence on a generation of Texas-bred blues performers has long been documented, whether it was Stevie Ray Vaughan recalling childhood days spent learning Nightcaps songs or Jimmie Vaughan naming his Fabulous Thunderbirds after the Nightcaps' song. And yet ZZ Top, a band that also owes much to the Nightcaps, refuses to pay its debt, be it a financial or moral one.

Code of Empire Tim Sanders swears he hadn't heard Course of Empire's early 1994 album Initiation till after he had written and recorded Code 4's new CD Move in Time, and I'm not about to call Sanders a liar. Besides, Sanders says, explaining the differences, "Course was more in that minor dissonant key, and we're more major-based."

No matter. Move in Time is indeed Course of Empire by way of "Antmusic" by way of Little Big Man by way of Oliver Stone's The Doors, with Sanders and band creating dance music, pure and simple. Its roots may well be Native American (hence, the sampled speeches about the White Man stealing and raping the land, about terminating the Red Man, about an Indian escape), but the end result is a CD that owes plenty to Anglicized disco-dirge-metal.

"We hope it's settled into hard-edged rock with different textures," Sanders says when describing the album, which follows a wildly uneven 1993 cassette debut. "The alternative rock phase is driving me nuts because it almost means pop. We're going to be in a no-man's land because we're not really anything. People say, 'What do you sound like?' I say, 'Kind of like Ministry but not as hard,' but that's not really true."

Filled with samples ranging from Public Enemy to Blue Velvet, Charles Manson to Tripping Daisy, Move in Time is Sanders' treatise on "how people place technology over nature." As such, it's filled with references to the exploited land and loaded up with whale and dolphin sounds, all set to a throbbing disco beat and repetitive guitar riffs, most of which were recorded, then sampled. Which explains Sanders' next quote: "We want [our sound] to have more impact than meaning."

Code 4 will celebrate the release of Move in Time with a performance February 3 at Trees. Admission is a buck, and Quickserv Johnny and Austin's Flowerhead open.

D-I-Why? It wasn't long ago when a band was lucky to record and release a cassette and sell it at shows, hoping to maybe break even by getting rid of 500 copies. But in the past couple of weeks, an almost overwhelming amount of area bands have released CDs, most of which have been do-it-yourself (and often quite pricey) deals--and most of which I'm way too nice to review. Among them are: Naked from Big German Thirst, Jibe's Live at Trees, Makin' Up Stories from Joe and the Blue Field out of Fort Worth, Beauty Knows No Pain from Quickserv Johnny (on the Rainmaker label), Kimbute and the Freedom Tribe's Asante Records debut International Madness, Cave Paintings from The Artists (another Fort Worth band), In the Red Zone from Fort Worth's blues mainstays Johnny Red & the Roosters, and Arlington-based Brad Thompson and His Undulating Band (which features Spot members Chad and Reggie Rueffer)...

But my favorite of the lot is Immortal, a CD from an Arlington-based metal band called Aska (as in, don't aska why they suck). These four mangy-maned and leather-garbed cliches sprung to hysterical life have been employed the last few years by the United States government, no less, to tour the world and perform on military bases, entertaining our fighting soldiers with rousing anthems of death, mayhem, child rape, and "sinkin' the pink." "Now I kill for the thrill of it," they sing in the title song; next song, "I kill again, you're dead."

Gives our boys something to fight for. Surrender now.

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